2019101219 2019090877 Accessibility Modified...REAS: I. C OMMUNICATION; II. A DAPTABILITY; III. O CCUPATIONAL T HERAPY; IV. S ELF-H ELP; V. A CADEMICS, S PECIFICALLY R EADING, W RITING

ACCESSIBILITY MODIFIED 1

BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

STATE OF CALIFORNIA

THE CONSOLIDATED MATTERS INVOLVING

PARENT ON BEHALF OF STUDENT, AND

OAKLAND UNIFIED SCHOOL DISTRICT.

CASE NO. 2019101219 CASE NO. 2019090877

DECISION

MARCH 3, 2020

On September 23, 2019, the Office of Administrative Hearings, called OAH,

received a due process hearing request from Parent on Behalf of Student, naming the

Oakland Unified School District as respondent. On October 30, 2019, OAH received a

due process hearing request from Oakland Unified School District naming Student.

OAH consolidated the two matters on November 5, 2020. Administrative Law Judge

Charles Marson heard the matters in Oakland, California, on January 7, 8, 9 and 13, 2020.

Attorney Nicole Hodge Amey represented Student. Student’s Parent and Sister

attended all hearing days on his behalf. Attorney David R. Mishook represented

Oakland. Special Education Local Plan Area Executive Director Neena Bawa Bhabhal,


Coordinator of Psychological Services Stacey Lindsay, Deputy General Counsel Andrea

Epps, Coordinator of Related Services Anne Zarnowiecki, Coordinator of Young Adult

Program and Career/Transition Services David Cammarata, and Coordinator of

Elementary Networks Cary Kaufman attended successive hearing days on Oakland’s

behalf.

At the parties’ request the matter was continued to February 11, 2020, for written

closing briefs. The record was closed, and the matter was submitted on February 11,

2020.

ISSUES

STUDENT’S ISSUES

1. Did Oakland Unified School District deny Student a free appropriate public

education in the 2018-2019 school year by:

a. Predetermining Student’s placement and the following related services:

i. Transportation via bus without a one-to-one bus aide and the

length of time of travel on the bus;

ii. Adapted physical education;

iii. Augmentative and alternative communication; and

iv. Placement in an inclusion program without a one-to-one aide;

b. Failing to implement the following components of Student’s individualized

education program:

i. One-to-one aide;

ii. Assistive technology; and

iii. Augmentative and alternative communication and speech services;


c. Failing to make an appropriate offer based on staffing issues;

d. Failing to design a program that would allow Student to make progress;

e. Failing to develop goals that addressed Student’s needs in the following

areas:

i. Communication;

ii. Adaptability;

iii. Occupational therapy;

iv. Self-help;

v. Academics, specifically reading, writing and math;

vi. Sensory support; and

vii. Social interactions; and

f. Denying Parent participation in Student’s individualized education program

process by not providing written notice when Parent requested a change of

placement in August, November, and December 2018?

2. Did Oakland deny Student a free appropriate public education in the 2019-2020

school year by:

a. Predetermining Student’s placement and the following related services:

i. Transportation via bus without a one-to-one bus aide and the

length of time of travel on the bus;

ii. Adapted physical education;

iii. Augmentative and alternative communication; and

iv. Placement in an inclusion program without a one-to-one aide;

b. Failing to implement the following components of Student’s individualized

education program:

i. One-to-one aide;

ii. Assistive technology; and


iii. Augmentative and alternative communication and speech services;

c. Failing to make an appropriate offer based on staffing issues;

d. Failing to design a program that would allow Student to make progress;

e. Failing to develop goals that addressed Student’s needs in the following

areas:

i. Communication;

ii. Adaptability;

iii. Occupational therapy;

iv. Self-help;

v. Academics, specifically reading, writing and math;

vi. Sensory support; and

vii. Social interactions;

f. Failing to file for due process to defend its individualized education plan

developed in February and May 2019; and

g. Failing to provide Parent with appropriate interpretation and translation

services from August 2019 to present?

OAKLAND’S ISSUE

Did Oakland’s offer of February 11, 2019, as amended on May 13, 2019, offer

Student a free appropriate public education in the least restrictive environment?

JURISDICTION

This hearing was held under the Individuals with Disabilities Education Act, its

regulations, and California statutes and regulations. (20 U.S.C. § 1400 et. seq.; 34 C.F.R.

§ 300.1 (2006) et seq.; Ed. Code, § 56000 et seq.; Cal. Code Regs., tit. 5, § 3000 et seq.)


The main purposes of the Individuals with Disabilities Education Act, referred to as the

IDEA, are to ensure:

• all children with disabilities have available to them a free appropriate public

education that emphasizes special education and related services designed to

meet their unique needs and prepare them for further education, employment

and independent living, and

• the rights of children with disabilities and their parents are protected.

(20 U.S.C. § 1400(d)(1); see Ed. Code, § 56000, subd. (a).)

The IDEA affords parents and local educational agencies the procedural

protection of an impartial due process hearing with respect to any matter relating to the

identification, assessment, or educational placement of the child, or the provision of a

free appropriate public education, referred to as FAPE, to the child. (20 U.S.C.

§ 1415(b)(6) and (f); 34 C.F.R. § 300.511 (2006); Ed. Code, §§ 56501, 56502, and 56505;

Cal. Code Regs., tit. 5, § 3082.) The party requesting the hearing is limited to the issues

alleged in the complaint, unless the other party consents, and has the burden of proof

by a preponderance of the evidence. (20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502,

subd. (i); Schaffer v. Weast (2005) 546 U.S. 49, 57-58, 62 [126 S.Ct. 528, 163 L.Ed.2d 387];

and see 20 U.S.C. § 1415(i)(2)(C)(iii).) In these matters, Student has the burden of

proving the claims he alleged, and Oakland has the burden of proving the claim it

alleged. The factual statements in this Decision constitute the written findings of fact

required by the IDEA and state law. (20 U.S.C. § 1415(h)(4); Ed. Code, § 56505,

subd. (e)(5).)


Student was 14 years old and in eighth grade at the time of hearing. He resided

within Oakland’s geographic boundaries at all relevant times. Student was eligible for

special education under the primary category of orthopedic impairment and the

secondary category of speech or language impairment.

OAKLAND’S ISSUE: DID OAKLAND’S OFFER OF FEBRUARY 11, 2019, AS AMENDED ON

MAY 13, 2019, OFFER STUDENT A FAPE IN THE LEAST RESTRICTIVE ENVIRONMENT?

STUDENT’S ISSUES NOS. 1.E AND 2.E: DID OAKLAND DENY STUDENT A FAPE IN

THE 2018-2019 AND 2019-2020 SCHOOL YEARS BY FAILING TO DEVELOP GOALS THAT

ADDRESSED STUDENT’S NEEDS IN THE FOLLOWING AREAS:

I. COMMUNICATION;

II. ADAPTABILITY;

III. OCCUPATIONAL THERAPY;

IV. SELF-HELP;

V. ACADEMICS, SPECIFICALLY READING, WRITING AND MATH;

VI. SENSORY SUPPORT; AND

VII. SOCIAL INTERACTIONS?

Oakland contends its February 11, 2019 IEP offer, as amended on May 13, 2019,

offered Student a FAPE in the least restrictive environment. Student contends Oakland

formulated the offered individualized education program, called an IEP, at meetings not


attended by all required personnel, could not have drafted valid goals without the

absent personnel, and did not propose goals that met all his needs.

A FAPE means special education and related services that are available to an

eligible child that meets state educational standards at no charge to the parent or

guardian. (20 U.S.C. § 1401(9); 34 C.F.R. § 300.17 (2006).) Parents and school personnel

develop an IEP for an eligible student based upon state law and the IDEA. (20 U.S.C.

§§ 1401(14), 1414(d)(1); see Ed. Code, §§ 56031, 56032, 56341, 56345, subd. (a), 56363,

subd. (a); 34 C.F.R. §§ 300.320 (2007), 300.321 (2006) & 300.501 (2006).)

In general, a child eligible for special education must be provided access to

specialized instruction and related services which are individually designed to provide

educational benefit through an IEP reasonably calculated to enable a child to make

progress appropriate in light of the child’s circumstances. (Board of Education of the

Hendrick Hudson Central Sch. Dist. v. Rowley (1982) 458 U.S. 176, 201-204; Endrew F. v.

Douglas County Sch. Dist. RE-1 (2017) 580 U.S. ____ [137 S.Ct. 988, 1000].)

SUBSTANCE OF THE OFFER

FAILURE OF THE GENERAL EDUCATION PLACEMENT

Student had Down Syndrome and was orthopedically impaired and intellectually

disabled. He was generally non-verbal except for a few words, could not read, could not

reliably count past one or two, and could not write anything more than his four-letter

nickname even with extensive verbal and physical prompting. He required assistance in

toileting and did not understand safety signs. He communicated mostly with gestures

and with a speech-generating device.


Student attended elementary school in the Berkeley Unified School District, which

placed him in a general education inclusion program with a one-to-one aide and other

supports and services. Parent believed Student was successful there, and his elementary

school teachers reported Student was able to display basic skills in reading, writing and

math. Parent and Student’s sister testified that he had those basic skills in elementary

school because he displayed them both at school and at home. Parent believed that

Student was “gifted” at math, and her daughter stated that she saw him write the entire

alphabet.

Student entered sixth grade in Berkeley’s Willard Middle School in fall 2017, again

in a general education inclusion class, but did not have the same success. At his annual

IEP team meeting in February 2018, Student’s teachers uniformly reported that Student

could not display the academic skills attributed to him in elementary school. He could

not recognize upper and lower case letters by name and sound and could not spell

many words, as had been claimed. He could only speak or approximate five to ten core

vocabulary words. He could write only the first three letters of his nickname with

extensive prompting and with support for his elbow and pressure on his arm or wrist.

He could not read.

Student’s elementary school teachers had also claimed he could sequence and

write numbers to the thousandth place, count objects with one-to-one correspondence,

and add two single-digit numbers and write the answer. Berkeley’s middle school

teachers did not observe Student display those skills.

Even though Berkeley described Student’s instructional level as “far, far below

grade level,” it did not propose to change his classroom. Its February 2018 IEP offer

continued his placement in general education inclusion, with a wide variety of


accommodations, modifications, services and supports. It also proposed 10 goals in the

areas of self-help, visual motor skills, fine and gross motor skills, expressive and

receptive language, writing and vocabulary. However, the offered IEP proposed

reducing adapted physical education support, and also proposed to remove direct

support of Student’s communication device because Student had learned how to use it.

Parent agreed to the IEP except for the reductions.

Student’s family moved to Oakland in 2016. Berkeley did not learn this until the

end of April 2018. Berkeley then informed Parent that Student would be dis-enrolled for

non-residence at the end of the school year.

Berkeley held a final IEP team meeting for Student in June 2018, at which it and

Parent resolved some of their remaining differences over services in the February 2018

IEP, and Parent agreed to nearly all of the amended IEP. The February 2018 Berkeley

sixth grade IEP, as amended in June 2018, was the last IEP to which Parent agreed, and

was still in effect at the time of hearing.

OAKLAND’S ATTEMPTS TO CHANGE THE PLACEMENT

Parent enrolled Student in Oakland in the summer of 2018 and agreed to his

placement in Montera Middle School under the terms of the Berkeley IEP. Student

started the fall semester late because Parent disliked the one-to-one aide assigned to

him and stated she would not send him to school until the aide was replaced. Oakland

declined and instituted attendance proceedings, whereupon Parent relented and sent

Student to school. He missed at least two weeks of classes, and when his IEP team first

met on September 10, 2018, they had little first-hand experience with him.


When Oakland members of the IEP team convened for Student’s first Oakland IEP

on September 10, 2018, Parent did not appear. The parties dispute whether she was

given notice of the meeting. Contrary to Student’s characterizations, the Oakland

members of the IEP team did not hold a meeting and did not make an offer. It did take

the opportunity to write or complete a draft of an offer.

The team reconvened on November 1, 2018, with Parent present. By then,

Student’s teachers had made the same observations as had Berkeley’s middle school

teachers: Student was in general education inclusion pursuant to the Berkeley IEP for all

his academic classes, but he was not able to show the skills he was said to have had in

elementary school. He could write only three letters of his name. He could not add two

single-digit numbers, and still could not read.

Oakland wrote several new goals for Student in the November 1, 2019 IEP offer

and proposed that his placement be changed to a special day class where he could

receive training in core subjects while mixing with typical peers during elective courses,

physical education, lunch and recess. The proposal would have kept him out of the

general education environment for about one-third of his school day. The November 1,

2019 IEP offer was similar to the Berkeley IEP in its accommodations, modifications,

services, and supports. Parent declined to agree to it.

The IEP team met again on February 11, May 13 and September 24, 2019, and

could not resolve the basic disagreement between Oakland staff and Parent. Oakland

staff believed Student was not learning anything and could not make any progress in

general education inclusion because he was unable to access the seventh-grade and

eighth-grade curriculum. They believed he should be moved for core subjects to a

special day class where his curriculum could be individualized and he could study at his


own pace among others doing the same, while benefiting from smaller class size, a

higher adult-to-student ratio, and far more individual attention. Parent, at least

throughout the 2018-2019 school year, believed Student could prosper academically in

general education inclusion if he were given more and better services and supports, and

a greater focus on academics.

At the IEP team meetings in 2019, Oakland continued to offer Student placement

in a special day class. Its offers, from the first IEP team meeting on November 1, 2018,

to the last one on September 24, 2019, were essentially the same: placement in a

special day class for core academic subjects and mainstreaming for electives, physical

education, recess and lunch. Oakland seeks a declaration that the offer constitutes a

FAPE.

SPECIAL DAY CLASS

Oakland’s February 11 and May 13, 2019 offer gave Parent the choice of one of

three moderate special day classes, although the parties appeared to regard the special

day class at Montera, which is closest to his residence, as the most likely placement. The

other two were functionally similar, but at different campuses.

Jennifer Quintanilla taught the Montera special day class for three years, and had

previous experience teaching a mild-to-moderate special day class in Oakland. She

obtained a bachelor’s degree in psychology at the University of California at Berkeley,

and a master’s degree from Alliant University in 2017. Ms. Quintanilla had a

mild-to-moderate educational specialist credential.

Ms. Quintanilla was a persuasive witness. She was well-informed, careful in her

statements, willing to admit the limits of her knowledge, and greatly concerned with the


welfare of her students. Her testimony was not damaged or undermined by

cross-examination. Ms. Quintanilla’s testimony was entitled to substantial weight.

There were 11 students in the Montera moderate special day class at the time

Ms. Quintanilla testified. The class was limited to a maximum of 13 students. Typically,

the students were eligible for special education in the categories of specific learning

disorder, intellectual disability, or speech and language impairment. Their common

areas of need were in writing, reading, math, speech and language, and social and

behavioral development. Most were globally impaired. Ms. Quintanilla’s students

usually had deficits in the areas of social communication and receptive or expressive

language. Some used speech-generating devices. None of this group of students was

nonverbal, but Ms. Quintinella had experience with nonverbal students and was

confident such a student could benefit from her class.

Three paraprofessionals were assigned to the class, and usually the students also

had one-to-one aides, as Student would have had if he were in the class. The ratio of

adults to students varied but was roughly one to three. This enabled Ms. Quintanilla

and her aides to pay much more attention to individual students than could be done in

general education.

Ms. Quintanilla used “Unique to You,” a district-wide curriculum for moderate

and moderate-to-severe special day classes. Every month the curriculum alternated

between a science unit and a history unit, and also addressed life skills. Reading and

writing were embedded in the curriculum, and it was differentiated, so students with

varying needs could use it. The curriculum was language-enriched and included audio

and visual tools to allow students who did not read at all to access the material.


Ms. Quintanilla also used Oakland’s regular curriculum, which she modified individually

for each student.

Ms. Quintanilla gave an example of how she mixed academic and life skills

instruction in her class. Her curriculum on the day she testified was Oakland’s standard

United States history curriculum, which she modified for each student. She taught

chapter one, on conflict and war, and then immediately afterward taught a life skills

component on dealing with conflicts in social settings and among peers.

Oakland used a block schedule, which alternated every day between English and

history subjects and science and math subjects. Ms. Quintanilla usually taught the

material by combining whole class lessons with small group instruction, using Unique to

You and materials she created. She and her aides targeted each student’s goals. When

she taught math, the students learned addition, subtraction and multiplication but also

learned about money and currency manipulation at levels consistent with their goals

and individual needs.

An average day in the Montera moderate special day class began with set

morning routines. The students began with mindfulness meditation and then

assembled for whole class or small group instruction. During the day, students learned

movement routines and worked with Ms. Quintanilla individually, and then went as a

group to lunch, an elective class like art, and general education PE. In the latter

activities, students were being mainstreamed, and were able to talk to typical peers and

sometimes form relationships with them.

The activities of the class could have included community outings, but the school

was in a hilly residential neighborhood that did not offer many opportunities for outside

learning. To compensate, Ms. Quintanilla had her class create mock stores inside the


classroom to practice money exchange. She also used a coffee cart, which a student

took around the campus on Fridays, selling coffee to adults on the campus. This

encouraged conversational skills and social engagement with adults, and was an

opportunity to practice money exchange.

Ms. Quintanilla’s students did not present significant behavioral problems. Some

of them found it hard to sit still, and frequently protested having to do non-preferred

work or simply did not do it, but their behavior was directed to the adults in the class,

not other students. None of them engaged in aggressive behavior. They did not hit

each other, destroy property, or spontaneously leave the classroom. Most of them just

had “a hard time sitting through work.”

The class was occasionally noisy, but all public school classes are occasionally

noisy. Ms. Quintanilla and other witnesses established that the Montera special day

class was no noisier than a general education class, and perhaps less noisy. At hearing,

Ms. Quintanilla examined Student’s goals and explained how she could implement them

in her special day class. Student’s goals were similar to the goals of other students in

her class, and she and her aides worked on such goals every day. She believed that

Student would make academic progress in her class.

Several other Oakland employees who were familiar with Student testified that,

based on his needs, they supported moving him to the moderate special day class.

Amy Chinn, Student’s resource teacher, wrote many of the goals in Oakland’s

February-May offer and explained at hearing how they would be implemented. She

stressed that it was important for a student to be working at approximately the same

level as other students in the class, for the purposes of modeling and practicing


pragmatic speech. Ms. Chinn, an inclusion teacher, stated that the whole purpose of

inclusion was to have a student doing what the other students were doing.

Ms. Chinn believed the Montera moderate special day class could have met all

Student’s needs and would have allowed him to make much more progress than he was

making at the time of hearing, in the eighth grade general education class. Academics

would have been at his level and the higher ratio of adults to students would have

allowed him to receive a lot more individual attention to his goals. In the special day

class, students worked on their own goals. In a general education class, they worked on

state common core standards.

Jenna Williams was a speech-language pathologist from the Speech Pathology

Group, on contract to Oakland. Her specialty was augmentative and alternative

communication. As a clinical supervisor, she supervised and consulted with the Oakland

staff who helped Student use his speech generating device, a Saltillo NovaChat tablet

with which he communicated his basic wants and needs. The NovaChat was a small

computer that produced programmed speech when one of several icons on the screen

was touched.

Ms. Williams trained Student’s teachers and aides to help him use the device,

which Student acquired in the fourth grade and knew how to use. She also provided

direct services to Student pursuant to the Berkeley IEP. Ms. Williams believed that

Student would have been better able to learn in the Montera moderate special day class

because it was smaller and had more structure, and because it offered the language

enrichment he needed.

Phoebe Nguyen, a licensed occupational therapist, worked with Student for

60 minutes once a week under the Berkeley IEP. At the time of hearing, she was


encouraging Student to write his name independently, and observed that he needed

extensive prompting, repetition and practice. She also assisted him in his daily activities

such as washing his hands and cleaning out his backpack. Ms. Nguyen believed that

Student would make more progress in the moderate special day class than he was

making in general education. She had worked in a moderate special day class, and

agreed with other witnesses that it would have provided Student a greater opportunity

to progress. The curriculum would have been tailored to his specific needs and

delivered at a slower rate than in general education, so he could learn it at his own pace.

It would have taught him more functional skills and increased his safety awareness.

Robert Kendall, a school psychologist, had pupil personnel services and school

psychologist credentials and was a board-certified behavior analyst with 23 years of

experience in assessing students. Oakland assigned Mr. Kendall to assess Student for

his 2020 triennial review. Although Mr. Kendall had not completed his report by the

time of hearing, he was able at hearing to describe the results of the several

standardized tests he administered, or attempted to administer, to Student. Because of

his cognitive impairment, Student was unable to produce valid scores on standardized

measures such as the Differential Ability Scales, Second Edition, or the Beery-Buktenica

Developmental Test of Visual-Motor Integration. Mr. Kendall reviewed the 2014 and

2017 triennial psychoeducational assessments reported by Berkeley, and found his own

conclusions commensurate with them. The 2017 assessment concluded that Student

was intellectually disabled, and Mr. Kendall concurred. He noted that Student also had

substantial deficits in expressive and receptive language.

Mr. Kendall interviewed Student’s family and observed Student twice in his

classes. Student was friendly, well behaved, and smiled a lot. But Student did not

express himself verbally and was not participating in or relating to any of the materials


or instruction being delivered. When the art teacher was demonstrating how to use art

materials, Student laid down on the middle of a table and tried to get the attention of

the other students by smiling. His aide was unable to redirect him. In Ms. Chinn’s

resource class, the students were cutting paper snowflakes in preparation for the

holidays, but Student could not participate. Even with extensive prompting and

hand-over-hand help from Ms. Chinn and an aide, he was unable to cut the paper.

Mr. Kendall concluded Student would be better educated in a special day class or

functional skills program where functional academic skills such as basic reading, writing,

and math and money handling were taught. In a special day class, he would have more

intensive individual support due to the lower ratio of students to adults, and his

program could be individually adjusted to his needs and goals. He would also benefit

from working with other students doing similar work.

Maria Pious, a speech-language pathologist, delivered direct services to Student

at Montera in 30-minute sessions twice a week. She administered a speech and

language assessment to Student for his 2020 triennial review, although she had not

completed her report at the time of hearing. She believed Student would have more

opportunity in a special day class working on a modified curriculum. At the time of

hearing, the general education staff did not have enough time to work with him.

Ms. Pious reviewed the speech goals in the February 11 and May 13, 2019 IEP

and believed that they were accurate and appropriate. She described the goals as

sufficiently lofty to challenge him, but not beyond his capabilities. Like Ms. Chinn and

Mr. Kendall, Ms. Pious stressed the importance of being able to work with other

students on the same materials, and being able to practice pragmatic language with his

classmates.


No professional testified in support of Student’s current placement or in

opposition to placing him in a special day class. Student called Dr. Jacob Randall, a

licensed educational psychologist who had also been a school psychologist, to testify

about the importance of having school psychologists at IEP team meetings. However,

Dr. Randall only met Student the day before his testimony, so he did not venture an

opinion about Student’s needs and whether Student should have been placed in a

special day class. He candidly stated he did not know enough about Student to know

what kind of program he needed without the help of an entire IEP team.

Student also called Rhonda Kimball-Kelly, a case manager for the Regional Center

of the East Bay. Student was eligible for regional center support because he was

intellectually disabled, and Ms. Kimball-Kelly had been coordinating various vendors to

serve him in the home, including providers of applied behavior analysis and respite

supporters. Ms. Kimball-Kelly opined that Student should be given a chance to succeed

in general education, and that all children, even those with intellectual disability, should

be given that chance.

Ms. Kimball-Kelly, who described herself as an advocate for Student and his

family, did not have the educational expertise to describe how the general education

curriculum could be modified to accommodate Student, although she was convinced

that it could. She vigorously advocated, for example, for the modification of the eighth

grade science class so Student could participate in it, but did not explain how that could

be done. Ms. Kimball-Kelly attended one of Student’s IEP team meetings, but never

observed him in a classroom. Her opinion was based more on faith in and hope for all

disabled children than any educational experience with Student, and as a result was not

persuasive. The consensus of Student’s teachers was that the general education

curriculum could not be modified enough to teach at his level.


The weight of evidence strongly favored Oakland’s proposal to move Student to

a special day class. Student was not able to benefit from his general education inclusion

program, and the special day class offered to Student would have provided him a much

better setting for progress and growth. This conclusion was supported by the opinions

of Ms. Quintanilla, Ms. Chinn, Ms. Williams, Ms. Nguyen, Mr. Kendall, and Ms. Pious, and

the only contrary evidence was the generic opinion of Ms. Kimball-Kelly.

Oakland proved that its offer of February 11, 2019, as amended on May 13, 2019,

offered Student an appropriate classroom in which he could learn and benefit.

GOALS

Oakland’s offer contained nine annual goals. Oakland contends the goals are

measurable, appropriate, and in compliance with all legal requirements. Student does

not criticize the content of the goals but argues that additional goals were required to

meet his needs.

An annual IEP must contain a statement of the individual’s present levels of

academic achievement and functional performance, including the manner in which the

disability of the individual affects his involvement and progress in the regular education

curriculum. (20 U.S.C. § 1414(d)(1)(A)(i)(I); 34 C.F.R § 300.320 (a)(1)(2007); Ed. Code,

§ 56345, subd. (a)(1).) The present levels of performance create baselines for designing

educational programming and measuring a student’s future progress toward annual

goals.

An annual IEP must also contain a statement of measurable annual goals

designed both to meet the individual’s needs that result from the individual’s disability

to enable the pupil to be involved in and make progress in the general curriculum; and


meet each of the pupil’s other educational needs that result from the individual’s

disability. (20 U.S.C. § 1414(d)(1)(A)(i)(II); Ed. Code, § 56345, subd. (a)(2).) Annual goals

are statements that describe what a child with a disability can reasonably be expected to

accomplish within a 12-month period in the child’s special education program. (Letter

to Butler, 213 IDELR 118 (OSERS 1988); U.S. Dept. of Educ., Notice of Interpretation,

Appendix A to 34 C.F.R., part 300, 64 Fed. Reg., pp. 12,406, 12,471 (1999 regulations).)

The February-May 2019 IEP offer contained nine annual goals for Student in the

areas of reading, safety/life skills, math, writing, adapted physical education, expressive

and receptive language, and pragmatics. The goals bore a close and specific correlation

to the present levels of performance in the offered IEP. They were derived from specific

baselines which reflected Student’s then-current capabilities. They used an adequate

level of specificity and sufficient numerical standards.

For example, the baseline of Student’s first expressive language goal was:

“[Student] is able to use want, go more, [and] like with 80 percent [accuracy] with

minimum to medium prompt per instance. Also, he is able to use stop with no prompt

when he does not like something (e.g. tickles).” The baseline accurately reflected

Student’s present level of performance when it was written. The related goal was:

By January 2020, [Student] will use 10 core vocabulary words (more, help, stop,

go, I, you, want, it, that, like) from his SGD [speech generating device] in 2-3 word

combinations when given no more than 3 verbal, visual, or gestural prompt[s] per

session, in a variety of settings (classroom, therapy, small group) with 80% accuracy, as

measured by data collection and observation from the SLP, aide, or special education

teacher.


The other eight offered goals were similarly quantified and specific. All of them

were capable of numeric measurement throughout the year. All of them stated how

progress would be measured and who was responsible for measuring it.

For a student taking alternative assessments aligned to alternative achievement

standards, as Student was, annual goals must be accompanied by short-term objectives.

(20 USC § 1414 (d)(1)(A)(i)(I)(cc).) Short-term objectives are measurable, intermediate

steps between the present levels of educational performance and the annual goals that

are established for the child. Only one of Oakland’s nine proposed goals contained

objectives.

The absence of objectives from the other goals constitutes a technical violation of

the IDEA. However, the IDEA allows for harmless errors. A procedural violation results

in a denial of a FAPE only if the violation: (1) impeded the child’s right to a FAPE;

(2) significantly impeded the parent’s opportunity to participate in the decision making

process regarding the provision of a FAPE to the parent’s child; or (3) caused a

deprivation of educational benefits. (20 U.S.C. § 1415(f)(3)(E)(ii); see Ed. Code, § 56505,

subds. (f)(2), (j).)

The absence of objectives is harmless in this case because it would not impede

the delivery of a FAPE to Student, cause him educational loss, or impede parental

participation in the IEP process. The goals are so basic, mechanical and arithmetical that

they do not need interim objectives. For example, both Parent and Oakland staff would

be able to calculate Student’s progress from five to ten core words over a year, without

intermediate objectives.

Ms. Quintanilla addressed at hearing each of the academic goals offered in the

February 11 and May 13, 2019 IEP, and opined that Student could make significant


progress on them in her class. She established that each of them could be implemented

in the proposed moderate special day class.

Ms. Pious explained each speech and language goal at hearing and described

how it would be implemented. The goals emphasized multimodal communication with

speech, sign, and Student’s augmentative communication device. Ms. Pious believed all

the speech and language goals offered in the February-May IEP were appropriate for

him.

Independent examination of the nine goals in the offered IEP shows that they

complied with all the above requirements except the requirement for objectives. The

February 11 and May 13, 2019 IEP recognized that Student’s intellectual deficits affected

his participation in the general education curriculum to such a degree that he required

an alternative curriculum and alternative assessments. The goals met each of the

educational needs the evidence showed Student had. The IEP extensively described his

present levels of academic and functional performance in general, and then used those

levels to establish benchmarks for each of the nine goals. The goals described advances

Student could reasonably expect to reach in a year, in light of his deficits. Each goal

described in detail how progress would be measured, who would measure it, and how it

would be reported to Parent. The goals did all of this with adequate specificity and

precision.

For the reasons above, the nine goals in the February 11 and May 13, 2019 IEP

and their related baselines were measurable, adequately addressed his unique needs,

and complied with legal requirements, with the exception of the omission of short-term

objectives from eight of them, which was harmless.


Student’s separate argument about goals, in his Issues No. 1.e. and 2.e., is drafted

broadly enough to address the November 2018 IEP offer as well as the IEP offer of

February and May 2019. However, Student in his closing brief does not mention the

goals in the November 2018 IEP offer and appears to have abandoned any argument

concerning them. Student’s argument is essentially an attack on the goals proposed in

the February-May 2019 offer and is addressed here.

Student contends Oakland denied him a FAPE in the February-May 2019 offer by

failing to develop goals in the areas of communication, adaptability, occupational

therapy, self-help, academics, specifically reading, writing and math, sensory support,

and social interactions. Student’s closing brief does not mention communications or

occupational therapy goals. Student appears to have abandoned those parts of his

argument. The evidence did not support those claims.

No professional testified that February-May 2019 IEP was missing any goal in any

area of Student’s needs. Student’s expert Dr. Randall had significant experience with

goals but was not asked to evaluate the goals in the February and May 2019 IEP. Nor

did Parent or Student’s sister identify any additional goals they thought the IEP should

have included.

Student’s argument for additional goals rests entirely on collecting snippets from

testimony and documents in his closing brief and claiming they add up to a need for

more goals. For example, Student argues he should have had at least one sensory goal.

No professional recognized the existence of such a need, and Student does not explain

what a sensory goal might contain. Student notes that in Ms. Chinn’s resource class, a

corner was set aside for students to take sensory breaks when they felt the need. If a

student taking a break wished, a sheet could be pulled down between the break area


and the rest of the class. On at least one day, Student went to the corner for a break

and pulled down the sheet separating him from the class. In another incident, Student

got distracted by his own image in a mirror. Student then concludes, “[Student] gets

distracted by his own image in the mirror when in the bathroom, and the sensory goal

will be necessary in any placement.” Student’s conclusion does not follow from the facts

relied upon.

Student in his closing brief assumes that every reference in his files or in

testimony to a need, a deficit, a challenge, or an area of struggle means that Oakland

was required by law to write a separate annual goal for each. That is not the law. An

annual IEP must contain annual goals that are measurable, and are designed to “meet

the child’s needs that result from the child’s disability to enable the child to be involved

in and make progress in the general education curriculum” and “meet each of the child’s

other educational needs that result from the child’s disability . . .” (20 U.S.C.

§ 1414(d)(1)(i)(A)(II)(aa), (bb); 34 C.F.R. § 300.320(a)(2)(i)(A), (B)(2007); Ed. Code, § 56345,

subds. (a)(2)(A), (B).) This language does not require that each identifiable need, deficit,

or area of struggle or challenge be addressed in a separate goal.

In Coleman v. Pottstown Sch. Dist. (E.D.Pa. 2013) 983 F.Supp.2d 543, parents

made the same contention as Student does here, but the District Court disagreed:

Plaintiffs interpret [§ 1414(d)(1)(A)(i)(II)] as requiring a school district to

create measurable goals for every recognized educational and functional

need of a student with disabilities. . . .[I]t would . . . be inconsistent with

the longstanding interpretation of the IDEA to find that providing a FAPE

requires designing specific monitoring goals for every single recognized

need of a disabled student. As noted above, a FAPE is a threshold


guarantee of services that provide a meaningful educational benefit, not a

perfect education.

(Id. at pp. 572-573.) The Court of Appeal affirmed that part of the District Court’s

decision. (Coleman v. Pottstown Sch. Dist. (3d Cir. 2014) 581 Fed.Appx. 141, 147-148;

see also N.M. v. The School Dist. of Philadelphia (3d Cir. 2010) 394 Fed.Appx. 920, 923

[nonpub. opn.]; L.M. v. Downingtown Area Sch. Dist. (E.D. Pa., April 15, 2015,

No. 12-CV-5547) 2015 WL 1725091, p. 16; Benjamin A. v. Unionville-Chadds Ford Sch.

Dist. (E.D. Pa., Aug. 14, 2017, Civ. No. 16-2545) 2017 WL 3482089, pp. 12-13.)

Student notes that the February-May 2019 IEP offer provided for consultation to

staff in the areas of occupational therapy, augmentative and adaptive communication,

assistive technology, physical therapy and speech and language. He then argues that

the offered IEP “does not have goals to drive the consultations or measure progress

from the consultations.” It is not clear what that means, but there is no legal

requirement for consultation goals.

Student ‘s only criticism of the speech and language goals in the February-May

IEP offer is to point out that Gloria Zepeda, the advocate from his attorney’s office, left

the May 13, 2019 IEP team meeting with a version of the speech and language goals

that was different from the final version in that it had fewer speech and language goals.

The origin and nature of Ms. Zepeda’s copy of the offer were not made clear at hearing,

and it may have been a draft. The meeting notes stated that Oakland staff requested

the advocate return that version at the meeting, which she refused to do. The

advocate’s version introduced at hearing was also missing a title page and cannot be

assumed to be complete. The version the advocate took from the meeting was not

necessarily the same as the offer made to Parent. There was no proof the offer made to


Parent was missing anything, and there is no claim that Parent was given a version that

was any different from the version introduced in evidence by Oakland.

Student argues the February and May 2019 IEP offer lacked “goals in the areas of

social interactions and adaptability that would build upon [Student’s] friendly, social

nature.” That claim is incorrect. One of the offered goals was for pragmatics and was

intended to “increase [Student’s] language skills for social communication.” Two others

sought to improve his expressive language and a fourth his receptive language, which

are prerequisites to social interaction. Student identifies no evidence that would

support the need for a goal for adaptability, which he did not define.

Student also incorrectly claims the offered goals did not address self-help. One

of the expressive language goals aimed “to support [Student’s] self-advocacy skills” and

expand his ability to say such things as “stop” and that he does not like something. His

other expressive language goals would also have improved his self-advocacy skills.

Student does not address the previously alleged lack of academic goals in the

areas of reading, writing, and math except to argue that there were not enough of them,

and that his deficits were so serious there should have been more goals. But the law

does not require any particular number of goals. Berkeley’s goals were more numerous,

but that did not set a legal minimum for Oakland, which believed that many of

Berkeley’s goals were unattainable by Student.

Student did not prove that the February-May 2019 IEP offer denied him a FAPE

due to the absence of any annual goals.


ACCOMMODATIONS, MODIFICATIONS, SERVICES AND SUPPORTS

Oakland contends its February-May 2019 IEP offer contained all the

accommodations, modifications, services and supports necessary to allow Student to

access the curriculum and benefit from his education. Student does not criticize or

mention the accommodations, modifications, services and supports in the February-May

2019 IEP.

An IEP must contain a statement of the related services, supplementary aides and

services, program modifications and supports that will allow the student to advance

toward his goals, access and make progress in his curriculum, participate in activities

and to be educated with other disabled and nondisabled children. (20 U.S.C.

§ 1414(d)(1)(A)(i)(IV); 34 C.F.R. §§ 300.34 (2006); Ed. Code, § 56345, subd. (a)(4).)

The February-May 2019 IEP contained an extensive variety of accommodations,

modifications, supports, and supplementary aids and services. It offered Student

preferential seating near positive role models, frequent breaks, extended time, reduction

of background noise and distractions, visual cues, a visual schedule, modeling, first/then

language, a first/then chart, and alternative response options for reading, writing, and

listening. It offered a modified curriculum, modified grading, and alternate assignments

when needed. It offered academic instruction at Student’s level and in accordance with

his IEP goals.

In addition, the February-May 2019 IEP offered technical support, consultation,

and any needed training of staff on Student’s speech-generating device, adult support

for toileting, consultation between the speech-language pathologist and the IEP team,

and consultation between the occupational therapist and the IEP team. The IEP also

offered Student the full-time support of a one-to-one aide, direct therapy individually


and in groups by a speech-language pathologist, adapted physical education, and

similar services during the extended school year.

The accommodations, modifications, services, and supports in the February and

May 2019 IEP adequately addressed Student’s needs related to his disabilities, and

Student does not argue otherwise.

TRANSPORTATION

The February-May 2019 IEP offer provided for transportation of Student to and

from school but did not specify the method. At the IEP team meeting of February and

May 2019, Oakland offered to transport Student by bus. Oakland contends that offer

was adequate. Student contends he was denied a FAPE because the transportation

option did not include a one-to-one aide on the bus and the bus would arrive too early

in the morning.

In California, related services include transportation must be provided if they may

be required to assist a special education student to benefit from his education. (Ed.

Code, § 56363, subd. (a).) However, transportation is for the student; it is not measured

by its convenience to a parent. (Fick v. Sioux Falls Sch. Dist. 49-5 (8th Cir. 2003) 337 F.3d

968, 970; S.K. v. North Allegheny Sch. Dist. (W.D.Pa. 2015) 146 F.Supp.3d 700, 712-714.)

Bussing was the obvious method of transportation for Oakland to offer. Student

had been bussed to elementary school. Parent drove him to Berkeley’s middle school

and received reimbursement.

Student’s argument that Student needed a one-to-one aide on the bus had no

support in the evidence. Parents did not request a one-to-one bus aide, and there was

no reason to offer it. Student did not have a bus aide in elementary school. At the


November 2018 IEP team meeting, Parent sought transportation by private car and

driver, which would not have involved an aide. It is true that at hearing one teacher, in

discussing Student’s level of life skills, testified that he could not recognize safety signs

and would probably never be able to cross the street independently. That by itself is not

proof he needed an aide on the bus.

The school bus would have picked Student up at 6:30 in the morning. Parent

stated that was too early and would mean Student would be tired at school. That

speculative concern was not enough to invalidate the bus offer. (DeLeon v.

Susquehanna Community Sch. Dist. (3d Cir. 1984) 747 F.2d 149, 150; Choruby v.

Northwest Regional Educ. Service Dist. (D.Ore, January 14, 2002, Civ. 01–54–JE) 2002 WL

32784016, p. 10 [nonpub. opn.].) Student introduced no evidence concerning the length

of the bus trip. In the end, Oakland and Parent agreed that Parents would drive

Student to and from school and be reimbursed at the Internal Revenue Service rate, as

Berkeley had done. Student did not prove that the transportation portion of the

February-May 2019 offer denied him a FAPE.

LEAST RESTRICTIVE ENVIRONMENT

Oakland contends the February and May 2019 IEP complied with the IDEA’s

requirement that a disabled student must be placed in the least restrictive environment

in which he can satisfactorily be educated. Student does not address the issue.

Federal and state law require a school district to provide special education in the

least restrictive environment appropriate to meet the child’s needs. (20 U.S.C.

§ 1412(a)(5); 34 C.F.R. § 300.114(a)(2006); Ed. Code, § 56040.1.) This means a school

district must educate a special needs pupil with nondisabled peers “to the maximum

extent appropriate,” and the pupil may be removed from the general education


environment only when the nature or severity of the student’s disabilities is such that

education in general classes with the use of supplementary aids and services “cannot be

achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); 34 C.F.R. § 300.114(a)(2)(ii); Ed. Code,

§ 56040.1; see Sacramento City Unified Sch. Dist. v. Rachel H. (1994) 14 F.3d 1398,1403;

Ms. S. v. Vashon Island School Dist. (9th Cir. 2003) 337 F.3d 1115, 1136-1137.)

Placement in the least restrictive environment is not an absolute. In an

appropriate case, it must yield to the necessity that a student receive a FAPE: “The IDEA

does not permit, let alone require, a school district to mainstream a student where the

student is unlikely to make significant educational and non-academic progress.” (D.F. v.

Western School Corp. (S.D.Ind. 1996) 921 F.Supp. 559, 571 [citation omitted]; see also

Rowley, supra, 458 U.S. at p. 181, fn. 4.)

Consequently, in appropriate cases, courts frequently approve placements

outside of general education. In cases like this one, when it is clear that a student

cannot benefit academically or socially from general education, the Ninth Circuit has

repeatedly approved placements for all or part of a school day in self-contained special

education classrooms. (See Baquerizo v Garden Grove Unified Sch. Dist. (9th Cir. 2016)

826 F.3d 1179, 1181, 1187-1188 [approving placement of autistic student in mild-to-

moderate special class]; A.R. v. Santa Monica Malibu Sch. Dist. (9th Cir. 2016) 636

Fed.Appx. 385, 386 [nonpub. opn.] [approving placement of autistic student in special

day class for part of school day]; B.S. v. Placentia-Yorba Linda Unified Sch. Dist. (9th Cir.

2009) 306 Fed.Appx. 397, 398-400 [nonpub. opn.][same]; Ms. S. v Vashon Island Sch.

Dist., supra, 337 F.3d at pp. 1136-1137; Clyde K. v. Puyallup Sch. Dist., No. 3 (9th Cir.

1994) 35 F.3d 1396, 1398, 1400-1402 [approving placement of student with Tourette’s

Syndrome in private school for the disabled].)


In Rachel H., supra, 14 F.3d 1398, the Ninth Circuit set forth four factors that must

be evaluated and balanced to determine whether a student is placed in the least

restrictive environment:

• the educational benefits of full-time placement in a regular classroom;

• the non-academic benefits of full-time placement in a regular classroom;

• the effects the presence of the child with a disability has on the teacher and

children in a regular classroom; and

• the cost of placing the child with a disability full-time in a regular classroom.

(Id. at p. 1404.)

The parties agree Student was not making acceptable progress in his general

education inclusion placement. He learned almost nothing academically. Much of the

time he hid his face and did not respond to questions. He often guessed at answers, or

just smiled and put his head down on his desk. While he greeted and was greeted by

typically developing peers with smiles and fist bumps, they did not pay attention to him,

or he to them, when class was in session, so he did not benefit socially during class.

Student was not disruptive, and the cost of the proposed placement was not an issue

addressed by either party.

Oakland’s offered placement would have had Student taking core academic

classes in the special day class, leaving him outside the general education environment

for approximately 33 percent of his school day. He would be in the general education

environment for the rest of his day, during lunch, recess, an elective class and physical

education. On balance, applying the criteria of Rachel H., supra, that placement was the

least restrictive environment for him. It would remove him from the general education


environment only for the core academic subjects in which he could not be satisfactorily

educated in a general education class.

OTHER IEP REQUIREMENTS

The IDEA requires an IEP to contain a wide variety of matters in addition to those

already discussed. Student does not contend the February-May 2019 IEP was defective

for failure to contain any of those additional required provisions. Independent

examination of the IEP reveals that it does contain all of the matters, statements, and

provisions required by law.

PROCEDURAL COMPLIANCE

Student’s principal argument in his closing brief in opposition to the February-

May 2019 IEP offer is that the IEP was crafted at meetings that did not have the legally

required personnel in attendance. Oakland does not address this issue.

An IEP team must include:

• at least one parent;

• a representative of the local educational agency;

• a regular education teacher of the child if the child is, or may be, participating in

the regular education environment;

• a special education teacher or provider of the child;

• an individual who can interpret the instructional implications of assessment

results;

• other individuals who have knowledge or special expertise regarding the pupil, as

invited at the discretion of the district or the parent and

• when appropriate, the student.


(20 U.S.C. § 1414(d)(1)(B); 34 C.F.R. § 300.321(a)(2007); Ed. Code, § 56341,

subd. (b).)

The IEP offer was created at two parts of the same IEP team meeting on February

11 and May 13, 2019. Student does not argue that any of the participants expressly

listed in the statute were not present. He argues, however, that six additional

participants were legally required:

• A school psychologist

• A speech pathologist

• An assistive technology specialist

• A translator or interpreter

• A moderate special day class teacher

• An augmentative and alternative communication specialist

Student does not cite any legal authority in support of his contention that the law

required the attendance of these additional team members, and does not mention the

statutory list of required attendees. (20 U.S.C. § 1414(d)(1)(B)(i), (iv-vi); Ed. Code,

§ 56341, subds. (b)(1), (5-6).) Instead, Student argues on the assumption that an

adequate goal in a particular area cannot be written except by a specialist in that area.

For example, Student implies only a school psychologist can write a lawfully compliant

social-emotional goal, only an occupational therapist can write a lawful occupational

therapy goal, only a speech pathologist can write a lawful speech and language goal,

and so forth.

This argument does not apply to some of Oakland’s offer because the speech

goals were written by speech-language pathologist Maria Hermana, and the

occupational therapy goal by occupational therapist Phoebe Nguyen. More importantly,


the argument is baseless. The IDEA and related laws regulate the quality of goals, not

the authorship of drafts. There is no legal requirement that anyone in particular draft

any particular kind of goal. Student’s argument also assumes that the drafter of a goal

unilaterally determines its content, but the IDEA requires that the entire IEP team,

including parents, consider and approve a goal’s contents, and changes and

amendments to proposed goals are routine in IEP team meetings. The argument also

denigrates the skills of every other member of the IEP team. For example, Ms. Chinn,

Student’s case manager and resource teacher, knew him better than any other Oakland

team member and wrote several of the goals in the offered IEP. Student’s argument

wrongly implies she was incompetent to do so. Notably, Student does not directly

criticize any of the goals she wrote.

There is no legal requirement that the absent specialists Student lists were

required to attend the IEP team meetings at which the February-May 2019 IEP was

drafted. The closest rule is that the IEP team must include “at the discretion of the

parent or the agency, other individuals who have knowledge or special expertise

regarding the child, including related services personnel as appropriate.” (20 U.S.C.

§ 1414(d)(1)(B)(i), (iv-vi); 34 C.F.R. § 300.321(a)(6)(2007); Ed. Code, § 56341, subds. (b)(1),

(5-6).) As the statutory language shows, inviting such participants is within the

discretion of the parties but is not required. (See Missouri Dept. of Elementary and

Secondary Educ. v. Springfield R-12 Sch. Dist. (8th Cir. 2004) 358 F.3d 992, 999 (“parents

are free to invite other individuals with expertise to participate”); Cone v. Randolph

County Schools (M.D.N.C. 2004) 302 F.Supp.2d 500, 506-507, aff’d 103 Fed.Appx. 731.)

If Parent had wanted additional specialists to attend the February and May 2019

IEP team meetings, she could have invited them. Student now inaccurately claims that

there was “no evidence” Parent was ever informed she could request the attendance of


additional participants at an IEP team meeting. On the contrary, the record contains

several examples of meeting notices that advised her of that right. Parent received

multiple copies of procedural safeguards in English, and at least one in Arabic. Parent

herself did not claim she did not know of this right, and she freely did invite additional

participants to meetings. For example, she invited Rhonda Kimble-Kelley, Student’s

regional center case manager, to the meeting on November 1, 2018, two advocates

from Family Resource Navigators to the February 11, 2019 meeting, and another

advocate to the May 13, 2019 meeting. Parent was well aware of her right to invite

additional participants.

SCHOOL PSYCHOLOGIST

There was no evidence Parent wanted or needed the presence of a school

psychologist at the February and May 2019 IEP team meeting. There was no recent

psychological report to review or explain. Student’s expert witness, the psychologist

Dr. Randall, offered few opinions about Student or his IEP’s, as he had only met Student

the previous day. Dr. Randall was repeatedly asked whether the presence of a school

psychologist was “necessary” or “needed” at Student’s IEP team meetings, but Oakland

successfully objected that the questions called for a legal conclusion. Dr. Randall then

testified that the presence of a school psychologist would have been “helpful,” that it

would be “difficult” to fashion a placement without one, and that he himself would find

the presence of a school psychologist necessary to writing an adequate program.

However, he testified he did not know if Student’s IEP team had acted on sufficient

information in its placement decisions. Dr. Randall’s testimony did not establish that a

school psychologist was a required member of Student’s IEP team. That is in any event

a legal judgment that Congress has made, not one to be determined by expert opinion.


INTERPRETER OR TRANSLATOR

A district must take whatever action is necessary to ensure that the parent

understands the proceedings of the IEP team meeting, including arranging for an

interpreter for parents whose native language is other than English. (34 C.F.R.

§ 300.322(e)(2018).)

Parent spoke a particular dialect of Arabic. She spoke enough English to have

unassisted conversations with Oakland staff, though probably not enough to

understand an IEP team meeting on her own. Oakland did not bring an Arabic

interpreter to the February 2019 meeting because Parent had previously told Student’s

case manager that she wanted her daughter to interpret during the meeting.

Parent’s daughter was a 19-year-old college student studying criminal justice at

San Francisco State University who lived with Parent and Student. She was fluent both

in the dialect of Arabic spoken by Parent and in English. The daughter attended

Student’s IEP team meetings since he was in the third grade, and frequently translated

for Parent at them. In her testimony at hearing, the daughter showed herself to be

highly intelligent and mature, dedicated to her younger brother, and completely familiar

with his special education history. There was no reason in the record to believe her

interpretation and translation assistance was anything less than excellent. She testified

that she was not “trained” to understand special education acronyms like “IEP” but did

not claim she did not understand them, and her testimony at hearing showed she did.

Although the facts are not clear, Oakland’s understanding with Parent about the

use of her daughter as an interpreter probably did not qualify as “arranging” for an

interpreter (20 U.S.C. § 1414 (d)(1)(B)(i)). This technical violation was harmless because

there was no consequence of the absence of a hired interpreter. Parent had her


daughter immediately available and used her as the interpreter by choice. Oakland did

not need to hire an interpreter for the first part of the meeting on February 11, 2019. It

did have one present at the second part of the meeting on May 13, 2019.

SPEECH-LANGUAGE PATHOLOGIST

At the February 11, 2019 IEP team meeting, Parent objected to the absence of a

speech-language pathologist. Oakland agreed to arrange a second session of the

meeting at which a speech-language pathologist could be present, and did so. A

speech-language pathologist was present at the second part of the meeting on May 13,

2019, answered Parent’s questions, and assisted in drafting speech and language goals

for the IEP. The pathologist was a participant the parties desired to have at the meeting,

but she was not required by statute to be present. Oakland did not violate the IDEA by

failing to have a speech-language pathologist at the first part of the IEP team meeting.

ASSISTIVE TECHNOLOGY/AUGMENTATIVE AND ALTERNATIVE

COMMUNICATION SPECIALIST

Jenna Williams, Oakland’s assistive technology and augmentative and alternative

communication specialist, attended much of the first part of the IEP team meeting on

February 11, 2019. She reported on Student’s present abilities and explained the

consultation staff was receiving on the use of his speech generating device. Parent

asked Ms. Williams several questions, which were answered. The meeting notes then

state: “The family gave Jenna [Williams] permission to leave early.” Apparently this

permission was not written.

Student argues that it was unlawful for Ms. Williams to leave the first part of the

meeting without written permission from Parent, but Student misreads the applicable


law. The only IEP team members to whom that requirement applies are the members

whose presence is mandatory. Members whose presence is not mandatory may be

permitted to leave without written permission of the parent. (34 C.F.R. § 321(e)(2007).)

Ms. Williams was permitted to leave the meeting with oral permission as she was not a

mandatory member of the IEP team. Ms. Williams was again present for the second part

of the meeting on May 13, 2019.

MODERATE SPECIAL DAY CLASS TEACHER

There was no teacher of a moderate special day class present at the first session

of the annual meeting on February 11, 2019. There is no legal requirement that an

IEP team contain the teacher of the class to which the school district proposes to move

a student. Sarah Vogelstein, an instructional coach who was a supervisor of most of the

attendees, attended the meeting. Ms. Vogelstein was competent to explain the nature

of the proposed special day class placement, and did explain its basics. The notes of the

second part of the meeting on May 13, 2019, show that a special day class teacher was

present.

None of the additional personnel identified by Student as essential the February

and May 2019 IEP team meetings was required by law to be present. In formulating the

offered IEP, Oakland did not violate the IDEA in selecting the personnel who attended

the meeting.

Oakland proved its IEP offer to Student of February and May 2019 was an offer of

a FAPE in the least restrictive environment. Student did not prove that Oakland failed to

develop any needed goals.


STUDENT’S ISSUES 1.C AND D AND 2.C AND D: DID OAKLAND DENY STUDENT

A FAPE IN THE 2018-2019 AND 2019-2020 SCHOOL YEARS BY FAILING TO MAKE AN

APPROPRIATE OFFER BASED ON STAFFING AND TO DESIGN A PROGRAM THAT WOULD

ALLOW STUDENT TO MAKE PROGRESS?

Student contends that Oakland failed to provide him an adequate offer and

program from his entry into seventh grade in Oakland’s Montera Middle School in fall

2018 to the start of hearing, causing him to regress in his skills. Oakland contends that

all its IEP offers were lawful and appropriate.

THE NOVEMBER 1, 2018 IEP OFFER

The offer presented to Parent at the November 1, 2018 IEP team meeting was

essentially the same offer as later presented in the February-May 2019 offer that

Oakland seeks permission to implement. Student recognizes this in his closing brief,

and does not make any argument specific to the November 2019 offer. Those

arguments have already been analyzed and rejected. For those same reasons, Student

did not show that the November 1, 2018 IEP offer denied him a FAPE.

THE FEBRUARY-MAY 2019 IEP OFFER

For the reasons already discussed, the February-May 2019 IEP offer was a

substantively and procedurally valid offer of a FAPE.

Student argues that Oakland’s offers were made “based on staffing,” but there

was no proof of that. This is an apparent reference to Student’s inaccurate claim that

speech and language goals were removed from the offer at the February 2019 meeting,

only to be restored at a separate meeting in May. In fact, the February and May


meetings were parts of the same meeting, and in February the discussion of speech and

language goals was postponed to the May meeting at Parent’s request so that a

speech-language pathologist could be present.

Student did not prove Oakland failed to make him an appropriate offer, and did

not prove Oakland failed to devise a program that would provide him a FAPE.

STUDENT’S ISSUES 1.A. AND 2.A: DID OAKLAND DENY STUDENT A FAPE IN THE

2018-2019 AND 2019-2020 SCHOOL YEARS BY PREDETERMINING STUDENT’S

PLACEMENT AND THE FOLLOWING RELATED SERVICES:

I) TRANSPORTATION VIA BUS WITHOUT A ONE-TO-ONE BUS AIDE AND THE

LENGTH OF TIME OF TRAVEL ON THE BUS;

II) ADAPTIVE PHYSICAL EDUCATION;

III) AUGMENTATIVE AND ALTERNATIVE COMMUNICATION; AND

IV) PLACEMENT IN AN INCLUSION PROGRAM WITHOUT A ONE-TO-ONE AIDE?

Student contends Oakland predetermined his placement and in addition,

predetermined its offer of transportation, adapted physical education, augmentative and

alternative communication, and placement in an inclusion program without a

one-to-one aide.

Oakland contends it did not and could not predetermine anything because

Student arrived in Oakland having an IEP from Berkeley that Oakland was bound to

follow and was still following, and that no evidence of predetermination of offers was

introduced at hearing.


An educational placement means that unique combination of facilities, personnel,

location, or equipment necessary to provide instructional services to an individual with

exceptional needs, as specified in the IEP, in any one or a combination of public, private,

home and hospital, or residential settings. (Cal. Code Regs. tit. 5, § 3042, subd. (a).)

Predetermination occurs when an educational agency has decided on its offer

prior to the IEP meeting, including when it presents one placement option at the

meeting and is unwilling to consider other alternatives. (HB. v. Las Virgenes Unified

School Dist. (9th Cir. 2007) 239 Fed.Appx. 342, 344-345 [nonpub. opn.].) A district may

not arrive at an IEP meeting with a "take it or leave it" offer. (JG v. Douglas County Sch.

Dist. (9th Cir. 2008) 552 F.3d 786, 801, fn. 10.) However, school officials do not

predetermine an IEP simply by meeting to discuss a child's programming in advance of

an IEP meeting. (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693, fn. 3.)

Although school district personnel may bring a draft of the IEP to the meeting, the

parents are entitled to a full discussion of their questions, concerns, and

recommendations before the IEP is finalized. (Assistance to States for the Education of

Children with Disabilities and the Early Intervention Program for Infants and Toddlers

with Disabilities, 64 Fed.Reg. 12406, 12478 (Mar. 12, 1999).)

There was no evidence that any of Oakland’s offer was predetermined. The

Oakland members of the IEP team met in September 2018, shortly after Student’s arrival,

but Parent did not attend and stated she was not notified. Oakland prepared or

completed a draft of an IEP to be presented at a meeting attended by Parent. That did

not violate the IDEA.

There was no evidence that Oakland’s offer of transportation in the November

2018 and February-May 2019 IEP’s was predetermined. Oakland offered bus


transportation, and now Student argues that since there was only one method of

transportation offered, it must have been predetermined. There is no requirement that

a district present multiple options for a parent’s choice to avoid a predetermination

claim.

Student’s argument that Oakland predetermined its offer of transportation would

be without a one-to-one aide rests only on the false assumption that if only one method

is offered it must have been predetermined. Student did not introduce any evidence

concerning the length of the bus trip.

Student’s only argument in support of his claim that his adapted physical

education was predetermined is that there was no adapted physical education specialist

at some of his IEP team meetings. That fact does not show predetermination.

Student’s argument that his assistive technology/augmentative and alternative

communications offer was predetermined is unpersuasive because it conflates several

separate subjects that do not relate to predetermination. For example, Student argues:

“The failure to write expressive language goals using his AAC/SGD device was a

predetermination of placement resulting from the absence of a speech pathologist who

could report on goals and who could write new communications goals.”

Student also charges that Oakland predetermined that Student “would not

receive direct AAC services from the SLP.” There was no evidence that this part of

Oakland’s offer was predetermined. In Student’s sixth grade year, Berkeley had also

proposed to cease direct services for Student’s speech generating device, apparently in

recognition of the fact that he knew how to use it and did not need further training.

Oakland later proposed the same reduction for the same reason. A proposal to reduce

a service is not, by itself, predetermination.


Student’s argument that placement in an inclusion program without a one to one

aide was predetermined is difficult to understand. Student had a one-to-one aide under

the Berkeley IEP, and every offer Oakland made included a one-to-one aide, including

the February-May 2019 offer. Student’s argument in his closing brief simply repeats his

claim that essential members were not at IEP team meetings.

Student did not prove that Oakland predetermined any portion of any of its

program offers. Student makes a different argument, which he also characterizes as a

predetermination claim, but it is mislabeled. Student argues at length that Oakland

failed to have all the IEP team members whom the law requires to be present at his

various IEP team meetings. This contention is fairly brought against Oakland’s case,

since Oakland must prove procedural compliance in drafting its February-May 2019 IEP.

But Student directs the claim to every other IEP team meeting in the relevant period as

well. Student labels this claim predetermination in an apparent effort to introduce a

new argument in his case that was not mentioned in his complaint, his prehearing

conference statement, or the statement of issues in the order following prehearing

conference issued on December 24, 2019.

Student may not introduce a new issue in his case by labeling it as something

else. The alleged absence of required personnel from IEP team meetings is separate

from any predetermination claim and was never part of Student’s case. By law, this

Decision may only decide those issues that are presented in Student’s complaint.

(20 U.S.C. § 1415(f)(3)(B); Ed. Code, § 56502, subd. (i).) In addition, basic fairness requires

that the argument not be entertained because Oakland, not having warning of it, has

not had an adequate opportunity to introduce evidence concerning it or brief it. This

new argument cannot be considered here.


STUDENT’S ISSUES 1.B. AND 2.B.: DID OAKLAND DENY STUDENT A FAPE IN THE

2018-2019 AND 2019-2020 SCHOOL YEARS BY FAILING TO IMPLEMENT THE

FOLLOWING COMPONENTS OF STUDENT’S IEP:

I. THE ONE-TO-ONE AIDE,

II. ASSISTIVE TECHNOLOGY; AND

III. AUGMENTATIVE AND ALTERNATIVE COMMUNICATION AND SPEECH

SERVICES?

Student contends Oakland did not implement three portions of his Berkeley IEP:

the one-to-one aide, assistive technology, and augmentative and alternative

communication and speech services. Oakland contends the one-to-one aide was

provided, and all or nearly all of the required assistive technology/augmentative and

alternative communication and speech services were provided.

A district commits a substantive violation of the IDEA when it departs from a

provision of an agreed-upon IEP, unless the deviation is only a minor variation from the

IEP. (Van Duyn v. Baker School Dist. 5J (9th Cir. 2007) 502 F.3d 811, 822.) The

Ninth Circuit held in Van Duyn that failure to deliver related services promised in an IEP

is a denial of FAPE when "there is more than a minor discrepancy between the services

provided to a disabled child and those required by the child's IEP." (Ibid.)

ONE-TO-ONE AIDE

There was no lapse in Oakland’s delivery to Student of the service of a

one-to-one aide. At the start of the fall 2018 semester Parent did not like the aide and


tried to replace her, but that is not relevant to Student’s contention. At all times

Oakland provided a one-to-one aide.

Later, Parent was angered to learn that the aide sometimes assisted Student with

an assigned classroom chore such as folding towels or selling coffee to adults from a

cart. The evidence showed that this was a normal part of the curriculum. All students in

general education had chores which taught life skills, and in the case of the coffee cart

offered opportunity for socializing and pragmatic speech. These chores made up an

insignificant proportion of the curriculum and on the average day were not done at all.

Far from showing an aide was not provided, the evidence showed the aide assisted

Student with his assignments.

ASSISTIVE TECHNOLOGY/AUGMENTATIVE AND ALTERNATIVE

COMMUNICATION SERVICES

Student acquired his speech-generating device, the NovaChat, in the

fourth grade. He used it regularly since then as his principal communication device.

Teachers reported that Student liked the device and took care of it.

There was some initial confusion among Oakland staff about which Berkeley IEP

governed the direct services for Student’s device. The Berkeley documents were

ambiguous with respect to Parent’s approval of assistive technology and augmentative

and alternative communications supports. That ambiguity complicated the relationship

of the parties and continued into the hearing and the parties’ briefs. In addition, the

evidentiary record was incomplete and Student’s argument is not entirely clear.

Part of Student’s argument is that Oakland did not deliver all of the direct

assistive technology services the Berkeley IEP required because Oakland used


unauthorized aides to deliver the service. During most of the fall of 2018 and spring of

2019, Oakland lacked a licensed speech-language pathologist to deliver services.

During that period, it used speech-language pathology assistants under the supervision

of a licensed speech-language pathologist to deliver Student’s speech-related services.

That use was generally authorized by law. (Ed. Code, § 56363, subd. (b)(1); Cal. Code

Regs., tit. 5, § 3051.1, subd. (d).) However, the regulation authorizes the use of the

pathology assistants only “if specified in the IEP.” The governing Berkeley IEP did not

specify the use of pathology assistants, so Student reasons that the services they

rendered to Student should be regarded as not delivered at all.

Another part of Student’s argument is that Student had three expressive

language goals in the Berkeley IEP, which were to be executed by a speech-language

pathologist and others, but not by pathology assistants, so those goals were not

implemented properly because a speech pathology assistant implemented them in part.

One of the expressive language goals was to be implemented by a speech-language

pathologist only, another by a speech-language pathologist, an aide, or a special

education teacher, and a third by a speech-language pathologist and the IEP team. A

pathology assistant was not part of the IEP team.

Ms. Williams, a speech-language pathologist as well as an assistive technology

expert, testified that she and a pathology assistant implemented the one Berkeley goal

that mentioned Student’s speech generating device. Sarah Panien, Oakland’s lead

speech-language pathologist, testified that she supervised a pathology assistant,

Janay Mosley, in implementing Student’s IEP. There was no reason to doubt their

testimony, but the exact division of labor cannot be determined from the record. For

example, the log of services Ms. Williams kept did not include all the services she


testified she rendered. The evidence did show that some of the implementation of

Student’s IEP and goals was left to Ms. Mosley, a pathology assistant.

A third aspect of Student’s argument is that Ms. Williams did not provide all the

services she should have because she deducted too many days from the services owed

Student for Student’s frequent absences. Parent testified that Student was sometimes

present when Ms. Williams thought he was absent. Student does not attempt to

quantify this alleged loss except by reference to a single day, October 7, 2018.

It is not necessary to fully untangle these factual issues because any variation

from Student’s IEP in the delivery of direct assistive technology support for Student’s

device, or in the delivery of speech services, had no apparent effect on his education.

Student does not argue there was any real-world consequence to the use of a speech

pathology assistant rather than a licensed speech-language pathologist during part of

the 2018-2019 school year, either to support his use of the com

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2019101219 2019090877 Accessibility Modified...REAS: I. C OMMUNICATION; II. A DAPTABILITY; III. O CCUPATIONAL T HERAPY; IV. S ELF-H ELP; V. A CADEMICS, S PECIFICALLY R EADING, W RITING